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Section 230 On Appeal (47 USC 230(c)(1))

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Court dismisses Avvo.com class action lawsuit

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Yesterday District Judge Lasnik of the Western District of Washington granted Avvo.com’s motion to dismiss the class action complaint filed against the site earlier this year, ruling that the plaintiffs’ claims were barred by the First Amendment and Washington’s Consumer Protection Act (“CPA”). If you aren’t familiar with the case,

Plaintiffs’ primary challenge is to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. Defendants assert that the opinions expressed through the rating system, (i.e., that attorney X is a 3.5 and/or that an attorney with a higher rating is better able to handle a particular case than an attorney with a lower rating), are absolutely protected by the First Amendment and cannot serve as the basis for liability under state law.

Directing that “the key issue is whether the challenged statement could ‘reasonably have been interpreted as stating actual facts’ about plaintiff,” the court found in favor of Avvo. Among its findings-

  • Avvo’s website contains numerous reminders that the Avvo rating system is subjective. The ratings are described as an “assessment” or “judgment,” two words that imply some sort of evaluative process.
  • Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings are a statement of actual fact.
  • [T]he Avvo rating system is an abstraction. (“No reasonable consumer would believe that Avvo is asserting that plaintiff Browne is a ‘5.5.’”)
  • [D]efendants’ rating is . . . virtually impossible to prove wrong.
  • Defendants fairly describe the nature of the information on which Avvo’s ratings are based and make it clear that (a) there may be other relevant data that the rating does not consider and (b) the conversion of the available information into a number involves judgment, interpretation, and assessment.
  • Consumers and the attorneys profiled have access to the underlying information and, while they may disagree with a particular rating and/or the implied comparisons drawn therefrom, “[t]here is no objective standard by which one can measure an advocate’s abilities with any certitude or determine conclusively the truth or falsity of [Avvo’s] statements . . . .”

Thus “[t]o the extent that [plaintiffs] seek to prevent the dissemination of opinions regarding attorneys and judges . . . the First Amendment precludes their cause of action.”

The opinion also includes an analysis and rejection of related claims under the CPA (plaintiffs also argued that (i) Avvo mischaracterized its rating systems, (ii) some of the data included in profiles is inaccurate, and (iii) Avvo’s overall business model is coercive). The court declined to address Avvo’s Section 230 defense, noting that “[p]laintiffs have disavowed any claim based on content that Avvo obtained from a third-party.”

Interestingly, the court seemed to leave the door open to claims against Avvo by individuals who rely on Avvo ratings to their detriment (“Consumers who were misled by the information and ratings provided by Avvo are the direct victims of the alleged wrongdoing.”) However, the remark was made while observing the remoteness of plaintiffs’ asserted damages, and may more properly be construed to mean that consumers directly harmed by an Avvo-rated attorney’s conduct would have a stronger position under the CPA than the plaintiffs do here, and that such a consumer claim would be made against the subject attorney.

Plaintiffs’ request for leave to amend their complaint was denied, so perhaps the Ninth Circuit will be the next stop for their claims.

Kudos to Avvo, which has responded to the decision on its blog. And thank you to Venkat Balasubramani for notifying me last night of Judge Lasnik’s ruling.

Written by Michael Erdman

Wednesday, December 19, 2007 at 10:41 am

Facebook agrees to Judgment in Putative Class Action

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Eric Goldman and Venkat Balasubramani previously blogged about the filing of a class action suit against Facebook earlier this year in California. My thoughts after reading the complaint several times was that while I agree that Section 230 would likely immunize Facebook for the content of unwelcome text or SMS messages, the statute would not necessarily protect Facebook from potential liability for the mechanism itself and/or related policies. Well, don’t expect answers to these questions any time soon.

While it has apparently not yet been entered by the Court, yesterday Facebook filed a Stipulated Entry of Judgment of Dismissal with Prejudice and General Release. Per the stipulation, Facebook has agreed to implement a “notice system” whereby it will provide text message recipients with a way to stop receiving such messages from Facebook (although the stipulation contains some language suggesting that this notice will only be included in every 15th message transmitted by Facebook), identify Facebook as the sender of such messages, and press mobile carriers to utilize “deactivation logs” to reduce the frequency of undesired text messages transmitted by Facebook. Facebook has also committed to pay plaintiff and her attorneys in amounts to be determined by the Court.

No doubt Section 230 would have found its way into a Facebook motion and/or answer, given Facebook’s assertion in Paragraph 8 of the stipulation that it didn’t do anything wrong, and that “it is immune from any liability under the [CDA].” (emphasis added)

UPDATE:  On January 23, 2008, Judge Fogel entered a dismissal order terminating this case.

Written by Michael Erdman

Friday, December 14, 2007 at 2:55 pm

Anthony v. Yahoo! – Summary and Update

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In 2005 Florida resident Robert Anthony filed a class action lawsuit against Yahoo! in the Northern District of California. Anthony’s complaint, as amended, alleged that Yahoo! created and perpetuated false and/or non-existent profiles on its on-line dating services (Yahoo! Personals, which Yahoo! states has “millions of users”, and Yahoo! Premier), with the intention of fooling people into joining the services and renewing their memberships. Anthony’s causes of action included breach of contract, fraud, negligent misrepresentation and violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”).

In a March 2006 order Judge Ronald M. Whyte granted Yahoo!’s motion to dismiss the contract claim (“Anthony cannot identify any contractual term that requires Yahoo! not to create or forward false profiles.”), but denied the motion as to the fraud, negligent misrepresentation and FDUTPA claims. Yahoo! had argued that such claims were barred by Section 230, but the court noted that Anthony alleged that Yahoo! created the false profiles and sent them to users, rendering Section 230 inapplicable.

Interestingly, the court also withheld Section 230 immunity with respect to Yahoo!’s alleged transmittal of profiles of “actual, legitimate former subscribers whose subscriptions had expired and who were no longer members of the service.” The court reasoned that while such profiles were created by actual, former users of the service (and not Yahoo!), “Anthony posits that Yahoo!’s manner of presenting the profiles – not the underlying profiles themselves – constitute fraud.” (emphasis added). It would have been nice if the court would have elaborated further upon this point.

Anthony next filed a second amended class action complaint which seeks damages in excess of $5 million and replaces the breach of contract claim with a claim for “Breach of the Implied Covenant of Good Faith and Fair Dealing.” Anthony states in this most recent pleading that he “believes even stronger evidence of fraud can be obtained from an examination of Yahoo!’s computer systems.”

The parties have briefed, but the court has not ruled, on the plaintiff’s motion for class certification.

Presumably evolving from two mediation sessions presided over by a former federal magistrate, this past summer the parties entered into a settlement agreement, which provides for the certification of a nationwide settlement class consisting of “all paid subscribers in the United States to Yahoo! Personals (including Yahoo! Personals Premier) between October 1, 2004 and the date of preliminary approval of this Settlement by the Court.” The settlement would, among other things, require Yahoo!, for two years, to maintain a “Report a Complaint” link, render certain inactive profiles unsearchable, and give canceling members the opportunity to delete their profile. Yahoo! also must place $4 million in a common fund for legal fees and distribution to authorized claimants.

In August, Judge Whyte preliminarily approved the settlement and requisite notice to class members. A final approval hearing is scheduled for next Friday, November 30, 2007, and as of this afternoon only one objection appeared on the court’s online docket.

6/16/2010 UPDATE: Here’s a link to the settlement website. The site notes that “The Court held a hearing (the “Final Approval Hearing”) . . . on Friday, November 30, 2007 at 9:00 a.m. The settlement was approved as fair, adequate, and proper. However, appeals were filed. These appeals have now been resolved.”

Written by Michael Erdman

Wednesday, November 21, 2007 at 5:35 pm

Class action alleges Hotels.com discriminates against persons with mobility disabilities

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Earlier this year Judith Smith, Bonnie Lewkowicz and Axis Dance Company filed a class action complaint in a California state court against the owner of Hotels.com. The plaintiffs allege “ongoing discrimination against persons with mobility disabilities who desire to, but cannot, use hotels.com’s worldwide reservation network to make reservations for hotel rooms.” The putative class includes “all individuals in California who are disabled because of a mobility impairment and therefore require an accessible room when they travel, and who have been and continue to be deterred from using hotels.com to make room reservations for accommodations in California because of hotels.com’s refusal to guarantee reservations for accessible hotel rooms.”

Basically plaintiffs allege that while persons with mobility disabilities can request an accessible room via hotels.com, they cannot search the website for an accessible room or be guaranteed that such a room will be available. Instead plaintiffs would have to wait until they arrive and check-in to learn whether a suitable room is an option. Because the plaintiffs cannot stay in a hotel room lacking certain accessibility features, they allege that they cannot use hotels.com. Plaintiffs claim that the same limitations exist when calling hotels.com’s toll-free telephone number.

The complaint alleges two state law causes of action – violations of California’s Unruh Civil Rights Act and Unfair Competition Law – and only asks for injunctive and declaratory relief (plaintiffs likely were determined to keep this case in state court).

Count I alleges that hotels.com’s “failure to allow Plaintiffs and the Class to guarantee accessible hotel rooms violates the Unruh Act by, among other things, denying Plaintiffs and the Class physical accommodations; preventing Plaintiffs and the Class from taking advantage of the reservation services hotels.com provides; and preventing Plaintiffs and the Class from benefiting from hotels.com’s guaranteed low prices.”

Count II alleges unlawful business practices (refers to Count I and alleged violations of California’s Disabled Persons Act) and unfair and deceptive business practices (claims that hotels.com’s website and other advertising is misleading to consumers). On the second point, plaintiffs’ allege that “[t]he website represents that consumers can find all the information they need and guarantee a stay at a hotel by using hotels.com’s services, but those promises do not hold true for travelers who require accessible accommodations.”

In response, Hotels.com has filed a general denial and stated that it expects to seek summary judgment and/or summary adjudication. It also will oppose the plaintiffs’ anticipated motion for class certification.

I’m curious, if someone were to call one of the hotels listed on hotels.com, could he or she get a guaranteed reservation for a room accessible to a person with a mobility disability? If anybody knows and/or tries, please drop me a line. Regardless, plaintiffs allege that they believe that hotels.com “has the ability to provide Plaintiffs and the Class with the search features and the ability to secure guaranteed reservations that they need.” I guess they hedged for a reason, because, according to plaintiffs, among the questions of law and fact common to all class members is “whether hotels.com has the ability to provide the services Plaintiffs need.” I’d certainly be surprised by a finding of liability here if the underlying hotels are unable/unwilling/not obligated to facilitate the features demanded here by plaintiffs. But I have a feeling it may not come to that. Perhaps with the recent certification of two classes in NFB v. Target in mind, last week the parties agreed to mediate their dispute. The mediation is presently scheduled for February 6, 2008 in San Francisco.

Smith v. Hotels.com L.P., California Superior Court, Alameda County, Case No. RG07327029.

Written by Michael Erdman

Tuesday, November 20, 2007 at 5:26 pm

NFB adds new plaintiffs in Target litigation

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Last month I summarized the National Federation of the Blind v. Target Corp. litigation, and noted a recent ruling by Judge Patel certifying two classes in the case.

Last week, presumably with the ADA’s nexus requirement in mind, plaintiffs filed their second amended class action complaint. New plaintiffs named in the complaint include Melissa Williamson (who alleges that the inaccessibility of Target.com has deterred her from shopping at Target stores) and James P. Marks (who echoes Ms. Williamson’s allegation, and adds that such alleged inaccessibility has forced him to have to pay an aide to accompany him when he does shop at Target stores.). Plaintiffs do not raise any new claims in their amended pleading.

Presently the court is considering the parties’ submissions regarding notice to the newly-certified classes.

Written by Michael Erdman

Monday, November 5, 2007 at 4:07 pm

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